Since 1962 -- ever since federal workers have been allowed to
unionize -- the President has retained the government-wide authority to
exempt federal agencies from collective bargaining requirements if the
agency's primary function revolves around national security work. In
1978, under President Jimmy Carter, this provision was codified into
the law dealing with federal employees:

5 USC 7103 (b) (1)
The President may issue an executive order
excluding any agency or subdivision thereof from coverage under this
chapter if the President determines that --
(A) the agency or
subdivision has a primary function of intelligence,
counterintelligence, investigative, or national security work, and,
(B) the provisions of this chapter cannot be applied to that agency
or subdivision in a manner consistent with national security
requirements and considerations.

This provision has been employed by every President of the United
States with care and deliberation. Dozens of federal agencies and
subdivisions representing tens of thousands of exemplary federal
employees have been exempted from collective bargaining requirements,
including:

FBI, CIA, and the Secret Service;

Office of
Enforcement at the Customs Service;

National Preparedness
Directorate of FEMA;

Air Marshals within the Federal Aviation
Administration;

National Drug Intelligence Center; and,

The
Federal Research Division at the Library of Congress

Both the original Lieberman bill and the Breaux-Nelson-Chafee
proposal significantly weaken the President's existing national
security authority as it would apply to the proposed Department of
Homeland Security -- the very department charged with helping to ensure
the security of the American people. Simply put, the President would
have less national security authority in the Department of Homeland
Security than he has in every other department and agency.

Even under the so-called Breaux-Nelson-Chafee "compromise
language" proposed in the Senate, the President of the United States
could not exercise his long-standing authority unless he can first
satisfy two new, burdensome standards that do not apply to any other
department.

First, in order to exercise his national security authority the
President would have to show that an agency's mission has "materially
changed." We know that even if the mission of the Border Patrol,
Customs, or the Transportation Security Administration does not
materially change, the threat to America very well may.

This creates the irony that if these agencies were left in their
existing departments and not moved to the proposed Department of
Homeland Security, the President would continue to exercise his
complete national security authority. However, if they are moved, with
the same employees and same mission to the Department of Homeland
Security, the President would have less national security authority
over the employees.

Second, instead of finding that the agency itself has a primary
function of "intelligence, counterintelligence, investigative, or
national security work," under the Breaux-Nelson-Chafee language the
President would have to determine that a "majority of the employees
[within the agency] have as their primary duty intelligence,
counterintelligence, or investigative work directly related to
terrorism investigations." (emphases added).

It is not clear that any agency of the Department -- or the entire
government for that matter -- would be able to demonstrate that a
majority of its employees had this narrowly defined task as their
primary duty. And again, the irony is this test would not apply if the
agency was left in its existing department.

The combination of these provisions would mean that the President
would effectively be prevented from making decisions based on national
security, no matter how urgent a crisis we find ourselves in and no
matter how compelling the needs of the nation.

Every President from this point forward would essentially be
prevented from making national security determinations for the
employees of the Department of Homeland Security, but free to make
national security decisions for the other fifteen Cabinet departments.

5 USC 7103 (b) (1)
The President may issue an executive order
excluding any agency or subdivision thereof from coverage under this
chapter if the President determines that --
(A) the agency or
subdivision has a primary function of intelligence,
counterintelligence, investigative, or national security work, and,
(B) the provisions of this chapter cannot be applied to that agency
or subdivision in a manner consistent with national security
requirements and considerations.

Proposed Limitation on Presidential Authority

Limitation on Exclusionary Authority
IN GENERAL -- No agency or subdivision of agency which is
transferred to the Department pursuant to this Act shall be excluded
from the coverage of Chapter 71 of title 5, United States Code, as a
result of any order issued under section 7103(b)(1) if such title 5
after June 18, 2002, unless --
(A) the mission and responsibilities
of such unit (or subdivision) materially change; and
(B) a majority
of the employees within such unit (or subdivision) have as their
primary duty intelligence, counterintelligence, or investigative work
directly related to terrorism investigations.

In a time of war and threat to the America, the President should
have the same national security authority for the Department of
Homeland Security as he does for the Department of Education or the
Environmental Protection Agency.